41 P. 1074 | Nev. | 1895
Action to recover damages for the diversion of water to which the plaintiffs claim title by virtue of prior appropriation, and for an injunction to restrain the future diversion thereof. *32
The complaint was filed April 11, 1894, but it was verified November 17, 1893, and for this reason it is claimed that it does not state a cause of action existing at the time of the commencement of the action. It would seem, however, that wherever the complaint alleges the existence of a fact in the present tense, it should be construed as referring to the time of the commencement of the action, and not to the time when it was sworn to. It was not necessary that it should be verified at all, and if it had not been, that certainly would be the proper construction to be put upon such an allegation. If the fact that it was verified so long beforehand has any effect whatever it should be to nullify the verification, and leave the complaint the same as though it had never been verified. Such a verification might be stricken out on motion, or if treated as a nullity, the only consequences that would follow would be that defendants would not be required to make specific denials, nor to verify their answer.
2. The complaint alleges the plaintiffs' prior appropriation of the water, which does not appear to have been seriously questioned upon the trial except as to four acres, and then pleads, by way of estoppel, the recovery by the plaintiffs' predecessors in interest, against the defendants' predecessors in interest, of a decree for the possession of the water. Upon the trial this decree was admitted in evidence, and several assignments of error are predicated upon this ruling. The decree was rendered upon stipulation, and is defective in several respects, but we do not think it is void. It appears from it that the right, title and right to the possession of all the water in the stream, except enough to irrigate four acres, was decreed to be in the plaintiffs in the action, and although it contains no description of the water so awarded, it refers to the complaint for that purpose, where the description is ample. While this is bad practice, for a decree should be complete in itself without reference to other documents or records, such a decree is not void. (1 Freeman, Judg., sec. 50c;Kelly v. McKibbon,
It is no more necessary that the decree should contain the stipulation upon which it was based than that it should contain the pleadings or findings. It was clearly intended to conform to the stipulation, and if it does not it is an error to *33 be corrected in that case, and does not render the decree void. Nor is it any objection that it was rendered against but one of the defendants in the action. The action may have been dismissed as to the others, but whether it was or not, it is not void as to the one against whom it was entered. (Gen. Stats. 3170, 3171.)
3. Upon the trial the claim for damages was dismissed and the action continued simply upon the equitable side for an injunction. The defendants then moved to dismiss the action entirely "upon the ground that the interests of the parties were not in common — that they owned separate interests." This motion was correctly overruled. The question of misjoinder was not raised by either demurrer or answer, and consequently was waived. (Gen. Stats. 3062, 3066, 3067.) But really, there was no misjoinder. The plaintiffs owned separate tracts of land, but they were joint owners of the ditch through which the water was diverted, and of the water itself. Even had they owned separate ditches and separate water rights, though they could not maintain a a joint action for damages, they could maintain such an action for an injunction against future diversion or obstruction of the stream. (Bliss Code Plead., sec. 76;Foreman v. Boyle,
4. As the decree was for the plaintiffs, we must presume that all the material issues upon which there were no findings or upon which the findings were defective as being merely conclusions of law, were found in the plaintiffs' favor, and consequently, there being no exception to the findings upon these points, nor request for farther findings, that the court found that the acts of the defendants did diminish the amount of water flowing to the plaintiffs, and also that the defendants' use of the water had not been open, peaceable, uninterrupted, under claim of right, etc., for the time necessary to create a prescriptive title in them. The most that can be said in defendants' favor upon these points is that the evidence was conflicting, that of the plaintiffs tending to prove that there had been no such user, and that their acts had diminished the quantity of the water, and under these circumstances the appellate court cannot disturb the findings, either express or implied, of the trial court. *34
5. If the plaintiffs have a right to the uninterrupted flow of the water except as to enough to irrigate four acres of land, the defendants have no more right to interfere with it upon their own land, except to take that quantity, than they have upon any other land, and the decree enjoining them from so doing is unobjectionable. If the law were otherwise the right to the use of water would rest upon a very frail foundation.
No prejudicial errors appearing, the judgment is affirmed.
